R v Khan (Sultan) [1996] UKHL 14

Police secretly attached a listening device to a private house, recording the appellant admitting involvement in heroin importation. Despite the evidence being obtained through civil trespass and without statutory authority, the House of Lords held it was admissible. The case confirmed that improperly obtained evidence remains admissible subject to judicial discretion.

Facts

The appellant, Sultan Khan, arrived at Manchester Airport from Pakistan in September 1992. His cousin, Farooq Nawab, was found with heroin worth almost £100,000 and was arrested. Khan was released without charge after no drugs were found on him and he made no admissions.

In January 1993, police installed a covert listening device on the outside of a house in Sheffield belonging to Mr Bashforth, suspected of dealing heroin. The device recorded Khan making statements admitting his involvement in the drug importation. The installation involved civil trespass and caused some property damage. Khan was subsequently arrested and charged.

The police had acted in accordance with Home Office guidelines issued in 1984 governing the use of surveillance equipment, which required authorisation by the Chief Constable for serious crime investigations where conventional methods would likely fail.

Issues

Primary Issue

Whether evidence obtained through a covert listening device, installed by police without statutory authority and involving trespass, was admissible in criminal proceedings.

Secondary Issue

Whether the trial judge should have excluded the evidence under his common law discretion or under section 78 of the Police and Criminal Evidence Act 1984, particularly having regard to Article 8 of the European Convention on Human Rights.

Judgment

The House of Lords unanimously dismissed the appeal, affirming that the evidence was admissible.

Lord Nolan, delivering the principal speech, confirmed the application of Reg v Sang [1980] AC 402, stating that evidence obtained improperly or unlawfully remains admissible subject to judicial discretion. He rejected the argument that the taped conversation fell within the exception for confessions obtained by inducement:

“In the present case, I would regard it as a misuse of language to describe the appellant as having been ‘induced’ to make the admissions which were recorded on the tape. He was under no inducement to do so.”

Lord Nolan held that two new principles would need to be established for the evidence to be inadmissible: first, that a right of privacy existed in English law similar to Article 8; second, that evidence obtained in breach of such right would be inadmissible. He stated:

“If evidence obtained by way of entrapment is admissible, then a fortiori there can hardly be a fundamental objection to the admission of evidence obtained in breach of privacy.”

Regarding section 78, Lord Nolan accepted that an apparent breach of Article 8 may be relevant to the exercise of discretion but held:

“Its significance, however, will normally be determined not so much by its apparent unlawfulness or irregularity as upon its effect, taken as a whole, upon the fairness or unfairness of the proceedings.”

Lord Slynn emphasised that the key issue was whether the trial as a whole was fair, referring to Schenk v Switzerland (1988) 13 EHRR 242 where the European Court of Human Rights held that unlawfully obtained evidence is not automatically inadmissible.

Lord Browne-Wilkinson and Lord Nicholls expressly declined to decide whether English law recognises a right of privacy, leaving this question for future determination.

Implications

This case confirmed that English law does not automatically exclude evidence obtained through improper or unlawful means. The admissibility of such evidence depends on judicial discretion under section 78 PACE 1984, focusing on overall trial fairness rather than the circumstances of obtaining evidence.

The judgment highlighted the absence of statutory regulation for police surveillance devices, contrasting with the regulated interception of communications under the Interception of Communications Act 1985. Lord Nolan described this absence as “astonishing” and noted that legislation was anticipated. This ultimately led to the Regulation of Investigatory Powers Act 2000.

The case established that while Article 8 ECHR considerations may be relevant to the exercise of section 78 discretion, a breach of Article 8 does not automatically render evidence inadmissible. The court’s role is to assess overall trial fairness, not to determine Convention breaches.

Verdict: Appeal dismissed. The Court of Appeal’s order affirming the appellant’s conviction was upheld. The evidence obtained through the covert listening device was held to be admissible, and the trial judge had properly exercised his discretion in not excluding it under section 78 of the Police and Criminal Evidence Act 1984.

Source: R v Khan (Sultan) [1996] UKHL 14